HOUSE BILL 2455

[cdillon]

Labor bill: COVID-infected workers presumed they caught virus on the job
By Timothy Eggert teggert@lawbulletinmedia.com
Posted May 22, 2020 4:09 PM







SPRINGFIELD — The Illinois General Assembly approved a bill Friday that lowers the burden of proof for essential employees who contracted COVID-19, making it easier for them to receive workers’ compensation benefits.

By a 113-2 vote, the House gave its final go-ahead to House Bill 2455. It is the first bill from the legislature’s special session to go to Gov. J.B. Pritzker’s desk.

A deal made between business groups and organized labor, the law creates a “rebuttable presumption” that first responders and front-line workers who suffer injury stemming from COVID-19 contracted the virus as part of their jobs.

The broader “labor omnibus” bill that contains the provision was introduced last year as a piece of unrelated legislation and passed by the House. This week, the state Senate gutted and replaced it with the workers’ compensation language using an amendment.

The amendment extends the rebuttable presumption to police and fire personnel, emergency medical technicians and paramedics, health-care providers and corrections officers. It also applies to all essential workers as identified under Pritzker’s March 20 executive order — as long as those workers were required to interact with the public or work with more than 15 employees at their place of work.

The provision, which expires Dec. 31, also requires workers to demonstrate they received a positive COVID-19 diagnostic test or a test showing a presence of COVID-19 antibodies for the presumption to apply in court. An employee would not receive the presumption if he or she was working from home for 14 days before testing positive for the virus.

Passed in the Senate on Thursday by a vote of 50-4, the bill is largely a codification of the emergency evidentiary rule filed last month by the Illinois Workers’ Compensation Commission — then rescinded days after. That rule declared COVID-19 to be a prima facie workplace occupational disease, creating a rebuttable presumption that a worker exposed to the virus got exposed during work.

Two industry groups sued the IWCC in state court alleging it exceeded its statutory authority under the Illinois Administrative Procedure Act when it approved the emergency amendment, and that it violated the Workers’ Compensation Act and Workers’ Occupational Disease Act.

A Sangamon County judge signed a temporary restraining order enjoining the commission from implementing it, and the IWCC ultimately repealed the rule.

On the House floor Friday, Rep. Jay C. Hoffman, D-Swansea, said that even though the new law is a “Band-Aid” and “not a solution to the whole problem,” it is at least a “fair solution,” passed properly by General Assembly.

”If an essential worker were to become infected and as a result have some health issues, it would be presumed that essential worker contracted COVID-19 at work,” said Hoffman, who also works as a sole practitioner. “However, that presumption could be rebutted if that employer is following the [Centers for Disease Control and Prevention] or the Illinois Department of Public Health guidelines for [personal protection equipment], social distancing, and the like. So, if you’re doing the right thing, that presumption would rebutted.”

Under the same presumption and qualification requirements, the bill also grants line-of-duty death benefits to the families of Chicago police officers and firefighters who die from the coronavirus.

Most of the probing to the bill Friday came from Rep. Daniel J. Ugaste, a Republican from Geneva who practices workers’ compensation defense at Nyhan Bambrick Kinzie & Lowry P.C.

Ugaste asked Hoffman about the legislative intent of the bill as it relates to the Illinois Appellate Court’s 2017 opinion in Johnston v. Illinois Workers’ Compensation Commission, in which the five-justice Workers’ Compensation Division panel ruled a firefighter who suffered a heart attack while shoveling snow at the East Dundee station’s parking lot should not receive benefits.

The Johnston ruling determined that outside risk factors can overcome a presumption written into the law — in that case, a presumption that firefighters’ cardiac issues are work-related. The Johnston majority found the fire department shared enough information about the fireman’s obesity, diabetes, family health history and smoking habits to show it wasn’t on the hook for his heart attack.

Hoffman agreed the bill intends to comply with the holding in Johnston.

According to language in the bill, an employee who contracts COVID-19 but fails to establish the rebuttable presumption is not precluded from filing for compensation under the bill or under the Workers’ Compensation Act.